The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Thursday, 26 January 2017

Brexit ~ Decision, Notice and the Withdrawal Bill

York Minister - Great West Window

In a post of 27th June 2016 - (It is Brexit (3) - the role of Parliament) - I argued that an Act of Parliament was required so that it was clear that the UK had made a decision to leave the EU. The gist of the argument was that Article 50
TEU made a clear distinction between the decision to leave - Article 50(1) - and the
notification of intention - Article 50(2). It was necessary to be clear that a decision
had been made in accordance with UK constitutional requirements. The words in red are vital. The referendum result could not amount to a decision
taken in accordance with constitutional requirements because the
referendum was not legally binding on anyone to do anything. Parliament
could have legislated to make it legally binding but had not done so.
It followed from this that an Act of Parliament was
necessary to achieve a decision made in
accordance with constitutional requirements. The secondary matter of notice to the EU could follow once the Act was in place. That was back in June 2016.

In both the High Court and the Supreme Court, the
Brexit litigation concentrated on whether the government (the executive) had the power, under the prerogative relating to foreign affairs, to give the Article 50 notice rather than
on whether a legally binding decision had actually been made. The High Court said that nothing really turned on the distinction between decision and notice because it was clear that the two provisions had to be read together
and if the Crown did not have power to give a notice under Art 50(2) then it
would appear that it could not make a decision to withdraw under Art
50(1).The court agreed with Lord
Pannick QC that whatever the position in relation to any
decision under Article 50(1), a decision to give notice under Article 50(2)
was the appropriate target for the legal challenge because it is the giving
of notice which triggers the effects under Article 50(2) and (3) leading to the
exit of a Member State from the European Union and from the relevant Treaties.

Hence, despite the clarity of wording in Article 50, the prior question of Decision was pushed behind the secondary question of Notice.

In the government's appeal to the Supreme Court, the focus was again on whether there was power to give notice. In the event, the Supreme Court majority (8 to 3) held that an Act of Parliament was required to authorise the giving of notice.

IF any concern remains about whether there has been a legally binding decision to leave the EU, the Bill will probably address it. Once the Bill becomes law it should be possible to say, by implication at least, that a decision to leave the EU has been taken in accordance with constitutional requirements - that is, by "the Queen in Parliament."

If the Supreme Court had held that the government did have prerogative power to give notice then it may have been the case that notice would have been given to the EU of a decision which had NOT been taken in accordance with constitutional requirements. That may have had considerable consequences in the future.

What of further referendums:The Supreme Court majority was of the view that the referendum was not legally binding but it was (obviously) of great political significance - see paragraphs 124 and 125 of the judgment. In the event that any future referendums take place, Parliament would do well to ensure that the relevant legislation addresses the consequences in law of the vote.

Revocable notice? Conditional notice?

The Brexit litigation
(including the appeal) proceeded on the basis of an agreed position that
Article 50 notification could not be unilaterally revoked by the UK. It was also common ground that a notice could not be conditional. Those questions remain unresolved. The possible consequences of this are well covered by a post by Rosie Slowe on the UK Human Rights Blog - Why the question of revocability still matters